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Babylonian Talmud: Tractate Baba Bathra
is not [the sale valid] because most [slaves] are [of] such [a character]? [And does not this prove that even in monetary matters,1 one is to be guided by the majority rule?]2 — No; all of them are such.3
Come and hear! [We learnt]:4 [If] an ox gored a cow, and its embryo was found [dead] at its side, and it is not known whether it gave birth before it was gored5 or after it was gored,6 [the owner of the ox] pays half [the cost of the] damage [in respect] of the cow,7 and a quarter [in respect] of the young.8 [Now. if, in monetary matters, one is guided, as Rab asserted, by the majority rule,] why [does the owner of the ox only pay a quarter of the loss]? Let it be said, 'Be guided [by what] most cows [do]', and most cows conceive and give birth [to live calves] and the miscarriage must, [consequently], have been due to the goring!9 — There, [the majority rule is inapplicable] because there is the uncertainty whether the [ox] approached from the front,10 and the miscarriage was due to shock;11 or from behind, and the miscarriage was due to goring;12 [the indemnity] is, [therefore like] money of doubtful ownership, and all money the ownership of which is in doubt must be divided [between the parties concerned].
Must it be said [that they13 differ on the same principles] as the [following] Tannaim? [It has been taught:] [If] an ox was grazing and a dead ox was found at its side, it must not be said, although the one is gored and the other is wont to gore, one bitten and the other wont to bite, 'It is obvious that the one gored or bit the other'. R. Aha said: [In the case of] a camel which 'covers'14 among [other] camels, and a dead camel was found at its side, it is obvious that the one killed the other. Now, assuming that [the principles] of majority15 and of confirmed legal status16 have the same force, must it be said that Rab17 is of the same opinion as R. Aha18 and Samuel19 is of the same opinion as the first Tanna?20 — Rab can tell you: What I have said [is valid] even according to the first Tanna. For the first Tanna made his statement, there, [that the killing is not to be attributed to the butting ox], only because one is not to be guided by the principle of legal status, but one is to be guided by that of majority.21 And Samuel can say: What I have said [is valid] even according to R. Aha. For R. Aha made his statement there, [that the 'covering' camel is assumed to be the killer], only because one must be guided by the principle of legal status, since it is the [camel] itself that has been confirmed in that status, [and is standing near by], but one Is not to be guided by the majority principle.22
Come and hear! [IF] ANYONE HAS SOLD FRUIT TO ANOTHER … AND [THE BUYER] SOWED THEM AND THEY DID NOT GROW, EVEN [IF THEY WERE] LINSEED, HE IS NOT RESPONSIBLE. Does not 'EVEN' imply. 'even linseed most of which is bought for sowing purposes'? And [does not this show that] even in such a case one is not guided by the majority principle!23 This24 is [a subject of dispute between] Tannaim. For it has been taught: [In the case when] one has sold fruit to another and [the buyer] sowed them and they did not grow, [if they are] garden seeds which are not eaten, he is responsible;25 [if they are] linseed, he is not responsible.26 R. Jose said:
Baba Bathra 93b
he must refund to him the price of the seed.1 They replied unto him: Many2 buy it for other purposes.3 Now who are the Tannaim [between whom the question of the majority principle, as has been said, is in dispute]? If it is assumed that they are R. Jose,4 and 'those who replied to him';5 [surely] both, [it may be retorted], follow the majority principle; one follows the majority of men,6 the others, the majority of the seed,7 [neither of these, then, can be said to agree with the opinion advanced by Samuel!] But [the dispute referred to is] either [that between] the first Tanna8 and R. Jose, or [between] the first Tanna8 and those 'who replied to him'.
Our Rabbis taught: What does he, [who has sold garden seeds which are not eaten], refund [the buyer who sowed them without success]? — The cost of the seeds, but not expenses.9 And others say: Expenses also [must be refunded]. Who are these others?10 — R. Hisda said: It is R. Simeon b. Gamaliel.
Which [of the teachings of] R. Simeon b. Gamaliel [reflects such a view]? If it is suggested [that the teaching is that of] R. Simeon b. Gamaliel of our Mishnah, where we learnt: [IF] ANYONE HAS SOLD FRUIT TO ANOTHER … AND [THE BUYER] SOWED THEM AND THEY DID NOT GROW, EVEN [IF THEY WERE] LINSEED, HE IS NOT RESPONSIBLE; [now] consider in view of this, the last clause [of our Mishnah]: R. SIMEON B. GAMALIEL SAID: FOR GARDEN SEEDS WHICH ARE NOT EATEN. HE IS RESPONSIBLE: Does not the first Tanna say the same thing? [For he said]. 'for LINSEED only. HE IS NOT RESPONSIBLE', which [implies that] FOR GARDEN SEEDS WHICH ARE NOT EATEN, HE IS RESPONSIBLE,11 [and this is the very law of R. Simeon]. Does not this [force the conclusion that] the difference between them is the [question of] expenses? One12 holds the opinion [that only] the cost of the seeds [is to be refunded], and the other13 is of the opinion [that the] expenses also [must be refunded]! — How [can this be proved]? Is it not possible [that the opinions of the two Tannaim are to be] reversed?14 This is no difficulty. Any Tanna [who is mentioned] last, enters [the discussion for the purpose of] adding some [restriction];15 [the objection, however, is that] all [the Mishnah] may be [the teaching of] R. Simeon b. Gamaliel, and [that only a few words are] missing, and [that] this [is what the Mishnah really] teaches: [IF] ANYONE HAS SOLD FRUIT TO ANOTHER. AND [THE BUYER] SOWED THEM AND THEY DID NOT GROW. EVEN [IF THEY WERE] LINSEED, HE IS NOT RESPONSIBLE — these are the words of R. Simeon b. Gamaliel, for R. SIMEON B. GAMALIEL SAID: FOR GARDEN SEEDS WHICH ARE NOT EATEN, HE IS RESPONSIBLE!16
But [it is] this [teaching of] R. Simeon b. Gamaliel, [reflecting the view of those 'others'] for it has been taught:17 [If] one takes wheat to grind and [the miller] does not moisten it [prior to the grinding], and makes it into bran flour or coarse bran; [or, if one takes] flour to a baker who makes18 of it bread which falls into pieces, [or, if one takes] a beast to a slaughterer who makes it unfit,19 he20 is liable [to pay compensation], since he is like one who takes payment [for his services].21 R. Simeon b. Gamaliel says: He indemnifies him for the insult to him and to his guests.22 [How much more, then, must he refund his expenses;] and so R. Simeon b. Gamaliel used to say:23 There was a fine24 custom in Jerusalem. If one entrusted [the preparations of] a banquet to another who spoilt it. [the latter] had to indemnify him for the insult to himself and to his guests. There was another fine custom in Jerusalem. [At the commencement of the meal] a cloth was spread over the door.25 So long as the cloth was spread, guests entered. When the cloth was removed, no guests entered.
MISHNAH. [IF] ONE SELLS FRUIT TO ANOTHER, [THE LATTER] MUST ACCEPT A QUARTER [OF A KAB OF] REFUSE FOR EVERY SE' AH. [IF HE SOLD HIM] FIGS, [THE BUYER] MUST ACCEPT TEN WORMY ONES FOR EVERY HUNDRED. [IF] A CELLAR OF WINE, HE MUST ACCEPT TEN [CASKS OF] PUNGENT [WINE] FOR EVERY HUNDRED. [IF] JUGS IN SHARON,26 HE MUST ACCEPT TEN BAD JUGS FOR EVERY HUNDRED.
GEMARA. R. Kattina learned: A quarter [of a kab] of pulse for each se'ah.27 And [need he] not [accept] sandy matter? Surely Rabbah b. Hiyya of Kteshifon28 said29 in the name of Rabbah: [If a man] picks out a pebble30 from his neighbour's threshing-floor
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